Korol v. Korol

• Decision Date: 28 October 1981
• Citation: 111 Misc.2d 650,444 N.Y.S.2d 816
• Parties: Danuta KOROL, Plaintiff, v. Henryk KOROL, Defendant.
• Court: New York Supreme Court

Page 816

444 N.Y.S.2d 816

111 Misc.2d 650

Danuta KOROL, Plaintiff, v. Henryk KOROL, Defendant.

Supreme Court, Special Term,

Nassau County, Part V.

Oct. 28, 1981.

Hennessy, Boychuk & Steinberg, New York City, for plaintiff.

Bernard Hirschhorn, Forest Hills, Aetna Casualty & Surety Company, New York City, for defendant.

ARTHUR D. SPATT, Justice.

This is a motion by defendant for an order, pursuant to CPLR 5021(a)(2), directing the Clerk of the Court to make an entry of the satisfaction of a certain judgment.

Background

Plaintiff (wife) and defendant (husband) married on March 31, 1948 in Piaskowa, Gora, Poland. The parties entered into a separation agreement on February 11, 1977, which, inter alia, provided for alimony payments to plaintiff. The parties were divorced on July 14, 1977. The aforementioned separation agreement was incorporated into the decree but not merged therein.

Plaintiff commenced the instant plenary action on January 18, 1980 seeking to recover arrears in alimony in the alleged sum of four thousand dollars. Defendant interposed his answer, counterclaim and request for a set-off on or about April 21, 1980. He asserted, inter alia, that plaintiff and the son of the marriage had "converted" certain jewelry, models and molds used in the manufacture of jewelry in defendant's business.

Plaintiff moved to dismiss the counterclaim on the ground that an action between the same parties involving identical issues was pending in Supreme Court, Queens County, before Justice Joseph J. Kunzeman. By oral decision dated October 22, 1980, this Court severed defendant's counterclaim and adjourned it pending receipt of Justice Kunzeman's decision. On plaintiff's cause of action, the Court awarded to plaintiff a judgment for arrears in the sum of $4,000.00.

By his decision dated May 29, 1981, Justice Kunzeman awarded defendant's assignor (his corporation) a judgment against plaintiff in the sum of $125,000 plus interest. This judgment was predicated upon a finding of conversion by plaintiff of the corporate property. The judgment for conversion was offset by defendant's (now plaintiff herein) services to the business in the sum of $35,000.00. The total judgment to the corporate assignor, therefore, amounted to $90,000.00.

By this motion, defendant seeks to offset the amount of $4,000 awarded to plaintiff for alimony arrearages against the judgment rendered in favor of defendant in Queens County.

Contentions

Plaintiff asserts that CPLR 5205(d)(3) precludes her judgment from offset, as this section, she contends, renders awards on marital actions exempt from defendant's judgment.

Not so, contends defendant. He asserts that an action on a separation agreement is a contract action and not a matrimonial action, making section 5205(d)(3) inapplicable.

The Law

CPLR 5205(d)(3) provides that "payments pursuant to an award in a matrimonial action, for the support of the wife, where the wife is the judgment debtor ... are exempt from the application to satisfy a money judgment." (emphasis supplied)

CPLR 105(o) defines a matrimonial action as one for a separation, an annulment, dissolution of a marriage, a divorce, for a declaration of the nullity of a void marriage, and other related actions. The statute is silent with respect to actions to recover alimony due and owing by virtue of a separation agreement. The official comments to said section note that not all actions involving a marriage constitute a matrimonial action, but "only those listed in this subdivision are". (McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C105:4, p. 42).

It has consistently been held that actions on separation agreements are not matrimonial actions. For instance, in Schreiber v. Schreiber, 34 A.D.2d 681, 310 N.Y.S.2d 459 (2d Dept. 1970), it was held that an action to recover arrears in alimony pursuant to a separation agreement incorporated into the divorce decree was not a matrimonial action, and that, therefore, defendant-husband need not plead special circumstances to conduct an examination before trial. Moreover, it has been held that the award of counsel fees, as provided by DRL Section 237, is improper in an action to rescind a separation agreement. In Donnarumma v. Donnarumma, 72 A.D.2d 545, 420 N.Y.S.2d 729 (2d Dept. 1979), the Court found that an action to rescind a separation agreement did not constitute a matrimonial action. See...